Preservation

Superseded by the 10/08/04 Preventive Maintenance Eligibility Memo

U.S. Department of Transportation Federal Highway Administration

MEMORANDUM

The purpose of this memorandum is to provide written guidance regarding the provisions in the 1991 ISTEA which created the Interstate maintenance (IM) program.

Authorizations - Section 1003

Section 1003(a)(1) establishes the first annual authorizations for the IM program for FY 1992 through FY 1997, in amounts ranging from $2.431 billion to $2.914 billion.

Apportionments - Section 1009

Section 1009 modified Section 104(b)(5)(8) of Title 23, which previously established the apportionment formula for the I-4R program. The formula remains based on the same factors, lane-mile (55 percent) and vehicular miles of travel (45 percent), for apportioning IM funds, but the formula now includes those Interstate routes designated under Sections 103 and 139(c) of Title 23 plus Interstate routes designated under 23 U.S.C., Section 139(a) before March 9, 1984 (except toll roads not subject to a secretarial agreement as provided in Section 105 of the Federal-Aid Highway Act of 1978). Section 104(b)(5)(8) of Title 23 provides that no State shall receive less than one-half percent of the total IM funds apportioned annually.

The certificate of apportionment of FY 1992 funds was transmitted by the FHWA Notice N 4510.264 dated December 18, 1991.

Availability - Section 1020

Section 1020(a) rewrites 23 U.S.C. 118 and provides that IM funds shall remain available for obligation in a State for a period of 3 years after the last day of the fiscal year for which they are authorized. For example, FY 1992 funds were apportioned on December 18, 1991, and will lapse on September 30, 1995, and FY 1993 funds will be apportioned on October 1, 1992, and will lapse on September 30, 1996.

Federal Share - Section 1021

Section 1021(a) provides that the Federal share on all IM projects shall be 90 percent, except as modified in States with sliding scales.

Eligibility - Section 1009

Section 1009(e)(5) amends 23 U.S.C. 119(a) to permit the Secretary to approve IM funded projects for resurfacing, restoring, and rehabilitating routes on the Interstate System designated under Sections 103 and 139(c) of Title 23, and routes designated prior to March 9, 1984, under Section 139(a) and (b) of Title 23.

Section 1009(e)(3) amends Section 119(c) of Title 23 to establish types of work eligible for IM funding. The section has been interpreted to include as eligible, those work items which provide for 3R work on existing features on the Interstate route and its interchanges and grade separations within normal "touchdown limits." For example, the rehabilitation of existing roadside hardware may include IM funding for work such as bringing old guardrail up to current standards, maintenance of impact attenuators, refurbishing existing traffic control signs, pavement markings, and other devices, etc. However, excluded from eligibility for IM funding are all new work elements, such as new interchanges, new ramps, new rest areas, new noise walls, or other work which does not resurface, restore, or rehabilitate an existing element.

Existing bridges (including over crossing structures) may be replaced with IM funds, provided they meet the structurally deficient criteria of the bridge program. Bridges classified as functionally obsolete may also be replaced with IM funding, except that capacity expansion elements should be subject to the limitations discussed in the following paragraphs.

Section 1009(a) prohibits IM funding for the portion of the cost of any project attributable to the expansion of the capacity of any Interstate highway or bridge, except for the addition of high-occupancy vehicle lanes or auxiliary lanes (such as truck climbing lanes).

In determining what portion of a project is eligible for IM funding and what portion is capacity expansion (and, therefore, not eligible for IM funds), the basic purpose of the project should be considered. If the project is a combination of preservation and capacity expansion, the cost should be split with 3R items eligible for IM funding and capacity expansion items eligible for other funds. In determining the split, it may be helpful to visualize the project without the capacity expansion work (added lanes, bridge widening or extension for example) and allow IM funding for all necessary 3R items.

Section 1009(e)(4) amends 23 U.S.C. 119(e) to allow IM funding for preventative maintenance activities, which a State can demonstrate through its pavement management system, are a cost-effective means of extending Interstate pavement life. Preventative maintenance includes activities such as sealing joints and cracks, patching concrete pavement, shoulder repair, and restoration of drainage systems which are found to be cost-effective projects resulting in extending the service life of pavements.

This provision has been extended administratively to allow IM funding for other preventative maintenance activities. Examples may include structure work such as crack sealing, joint repair, seismic retrofit, scour countermeasures and painting of steel members which are cost-effective in extending the service life of the structure.

Toll Roads. Bridges and Tunnels - Section 1012

Section 1012(d) provides that existing toll agreements entered into under Section 119(e) or 129 of Title 23 prior to and in effect on the date of enactment of the 1991 ISTEA shall continue in effect. All new agreements must be executed in accordance with the provisions of the 1991 ISTEA. Guidance on the use of Federal-aid funds on toll roads has been provided by Mr. Kane's memorandum of March 12, 1992.

Discretionary Funds

There is no provision for set aside of funds from the IM program for discretionary purposes. Also there is no provision for reallocation of apportioned IM funds which lapse at the end of the availability period.

Section 1020 does provide for a continuation of the I-4R discretionary fund program that is separate and distinct from the IM program. The source of the I-4R discretionary funds is an annual set aside from National Highway System (NHS) funds. These I-4R discretionary funds may be used for IM-type projects or for other improvements on the Interstate including projects to provide additional Interstate capacity. A memorandum was issued on December 20, 1991, which outlined procedures for applying for FY 1992 I-4R discretionary funds. A similar memorandum will be issued annually.

Transferability - Section 1009

Section 1009(e)(5)(D) and (E) modifies 23 U.S.C. 119(f) to allow a State to unconditionally transfer an amount not to exceed 20 percent of its IM apportionment to its apportionments under 23 U.S.C. 104(b)(l) for the NHS or 23 U.S.C. 104(b)(3) for the Surface Transportation Program (STP).

Section 1009(b) further amends 23 U.S.C. 119(f) to allow a State to transfer an amount in excess of the 20 percent unconditional IM fund transfer, if the State certifies to the Secretary that (1) the sums to be transferred are in excess of its needs for resurfacing, restoration or rehabilitating its Interstate System routes and (2) the State is adequately maintaining the Interstate System, and if the Secretary accepts the certification.

State requests to transfer IM funds should be submitted to the Division Administrator and may be approved by the Regional Federal Highway Administrator Funds transferred into the STP will be transferred into the State Flexible Appropriation Code 33D.

Adequate Maintenance of the Interstate System

Requirements for the State to certify that it is adequately maintaining the Interstate System and that the Secretary develop criteria for determining what constitutes "adequate maintenance" were added by Section 1009(c)(2).

We anticipate that formal rulemaking may be necessary to allow input from the States in the development of definitive guidance on what constitutes adequate maintenance. Therefore, for the purpose of evaluating State requests to transfer IM funds, in excess of the 20 percent unconditional amount, and until such time as these criteria are established, the guidance contained in the Federal-Aid Policy Guide, CFR 635E and its supplement (old FHPM 6-4-3-1) should be used for determining whether the State is adequately maintaining the Interstate System.

Headquarters Contacts

This guidance will be updated in the future if further clarifications are found necessary. Questions about what constitutes adequate maintenance of the Interstate System should be directed to the Construction and Maintenance Division (HNG-21). Pavement management systems are coordinated by the Pavement Division (HNG-41). Other questions about the IM program should be directed to the Interstate and Program Support Branch (HNG-13).

/s/ original signed by
Anthony R. Kane